Jaya S vs The Joint Regional Transport ...
2022 Latest Caselaw 6324 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
       FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                          WP(C) NO. 17384 OF 2022
PETITIONER:

              JAYA S
              AGED 45 YEARS
              W/O RAJANEESH S THILAKAN, NANDANAM,CHIRAKKADAVAM,
              KAYAMKULAM, ALAPPUZHA

              BY ADV PRASAD CHANDRAN



RESPONDENT:

              THE JOINT REGIONAL TRANSPORT OFFICER
              KAYAMKULAM, (TAXATION OFFICER) SUB REGIONAL TRANSPORT
              OFFICE, MINI CIVIL STATION, KAYAMKULAM, PIN-690 502.


OTHER PRESENT:

              ADV. DR. THUSHARA JAMES (SR. GP)




THIS   WRIT    PETITION   (CIVIL)    HAVING   COME   UP   FOR   ADMISSION   ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)N.17384/2022                     2

                               JUDGMENT

The petitioner has approached this Court challenging Ext.P4 order

calling upon the petitioner to remit tax on his vehicle (as a non-transport

vehicle) on the basis of floor area with reference to Entry 15 of the

Schedule of the Kerala Motor Vehicle Taxation Act, 1976.

2. The short case of the petitioner as projected by the learned

counsel for the petitioner is that the vehicle of the petitioner was a stage

carriage plying under a valid permit and the vehicle was registered in the

year 2008. It is submitted with reference to the judgment of the Division

Bench of this Court in W.A.No.220/2018 that, in respect of stage

carriages registered prior to 1.10.2017, the levy of tax can only be on the

basis of seating capacity and not on the basis of floor area. It is therefore

submitted that the demand made in Ext.P4 is absolutely untenable.

3. The learned Senior Government Pleader appearing for the

respondent would contend, with reference to Entries 7 and 15 of the

Schedule to the Kerala Motor Vehicles Taxation Act that since the

petitioner does not fall within Entry 7 which, applies only to motor

vehicles plying for hire and used for transport of passengers and in

respect of which permits have been issued under the Motor Vehicles Act

1988, the taxation of the petitioner will have to be under Entry 15 which

provides only one method of calculation of tax which is on the basis of

floor area. It is submitted that the judgment of the Division Bench of this

Court in W.A.No.220/2018 and connected cases is only in respect of the

stage carriages in respect of which tax is levied under Entry 7 and not in

respect of vehicles which have to pay tax under Entry 15 of the Schedule.

5. Having heard the learned counsel for the petitioner and the

learned Senior Government Pleader, I am of the view that there is merit

in the contention taken by the learned Senior Government Pleader that

the petitioner cannot, on the basis of judgment in W.A.No.220/2018,

claim that even in respect of vehicles which are to be taxed under Entry 15

of the Schedule to the Kerala Motor Vehicle Taxation Act, the tax will

have to be calculated on the basis of seating capacity even if they

registered prior to 1.10.2017.

6. There are two reasons why the argument of the learned

counsel for the petitioner cannot be accepted. Firstly, the interpretation

placed by the learned counsel for the petitioner would require this Court

to read into Entry 15 something that is not there. This is clearly

impermissible in exercise of jurisdiction under Article 226 of the

Constitution of India. Secondly, a reading of the judgment in

W.A.No.220/2018 of a Division Bench of this Court clearly indicates that

the cut off date (1.10.2017) applies only to stage carriages in respect of

which permits have been issued under the Kerala Motor Vehicles Act. In

other words, that judgment would apply only in respect of vehicles to

which the "code of practice for Bus Body Design and Approval" applied

with effect from 1.10.2017. The Division Bench clearly held that since the

above code applied only from 1.10.2017, tax cannot be demanded under

Entry 7 to vehicles registered prior to that date. The Schedule provides

for a method of calculation of tax and unless there are clear indications

that the method of calculation of tax under Entry 15 is to be restricted to

vehicles registered after 1.10.2017, it cannot be held that the method of

taxation provided in terms of Entry 15 will apply only to vehicles

registered after 1.10.2017.

7. The learned counsel for the petitioner then submits with

reference to Ext.P3 that even in respect of tax levied in terms of Entry 15

of the Schedule, the tax has been calculated only with reference to seating

capacity in respect of vehicles registered prior to 1.10.2017. However, in

the light of the interpretations that I have placed on the Schedule and the

judgment of the Division Bench of this Court, it is not possible to grant

relief to the petitioner even if the authorities have granted a benefit to

persons similarly situated. The concept of negative equality is clearly

alien to our jurisprudence. For all these reasons, the writ petition fails

and will stand dismissed.

Sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 17384/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY F THE REGISTRATION CERTIFICATE OF THE PETITIONERS VEHICLE BEARING NO KL-

                        29/A 5544

Exhibit P2              TRUE COPY OF THE PROCEEDINGS OF THE
                        RESPONDENT DATED 13.5.2022

Exhibit P3              TRUE COPY OF THE TAX ENDORSEMENT IN
                        RESPECT OF STAGE CARRIAGE BEARING NO KL-
                        03/P 5556.

Exhibit P4              TRUE COPY OF HE PROCEEDINGS OF THE
                        RESPONDENT DATED 24.5.2022